Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Türkiye (Ratification: 1952)

The Committee notes the information supplied by the Government in its report, as well as the information provided to the Conference Committee in June 1998 and the detailed discussion which took place thereafter. The Committee also notes the comments made by the Confederation of Turkish Employers' Associations (TISK), the Confederation of Turkish Trade Unions (TURK-IS) and the Energy, Road, Construction, Infrastructure, Title Deed Land Survey Public Sector Employees' Trade Union.

1. Articles 1 and 3 of the Convention. In its previous observations, the Committee had noted the comments made by TURK-IS on the insufficient protection against acts of anti-union discrimination under Trade Union Act No. 2821. In this regard, the Committee notes the information supplied to the Conference Committee whereby the Government indicates that sections 29, 30 and 31 of Act No. 2821 and the sanctions stipulated therein provide for sufficient protection against acts of anti-union discrimination. More specifically, in case of discrimination at the time of recruitment, the fine envisaged is not less than half of the prevailing monthly wage. Moreover, although according to the Turkish legislation the burden of proof rests with the plaintiff, an amendment made to Act No. 2822 in 1988 stipulates that communication to the employer by the union of a worker's acquisition of membership should be delayed until it could have no adverse effect at all on the right to organize and bargain collectively. In the event of the dismissal of a worker due to union-related activities, in addition to the rights conferred by labour legislation, such as severance indemnities and notice pay, the employer is required to pay compensation which is not less than the worker's total annual wages. This compensation is payable not only in the case of dismissal, but also for other acts of anti-union discrimination, for example with regard to the distribution of work or promotion. Various rulings by the courts show that this type of compensation is granted more frequently than had been claimed by TURK-IS. Moreover, section 29 of Act No. 2821 provides for specific protection for trade union officials, which includes their reinstatement in their previous or similar jobs within one month of their request for reinstatement, provided they apply to their previous employer within three months of losing their positions in the trade union. However, until the adoption of enabling legislation consistent with the Termination of Employment Convention, 1982 (No. 158), shop stewards are the only category granted complete job security, including reinstatement. Work is under way on the formulation of new legislation in this matter.

The Committee takes note of this information and requests the Government to keep it informed of any progress made in the adoption of this legislation. It hopes that it will ensure effective protection to all workers against acts of anti-union discrimination. It further requests the Government to provide copies, along with its next report, of judicial decisions which show that compensation in case of various acts of anti-union discrimination is granted quite frequently.

2. Article 4. With regard to a number of limitations on collective bargaining mentioned by TURK-IS in its observations (prohibition of collective bargaining for confederations, industry-wide bargaining is not admitted, only one collective agreement is allowed at a given level, ceilings are imposed on indemnities, there is a 60-day time-limit for bargaining), the Committee notes that the information supplied by the Government representative to the Conference Committee, while justifying these restrictions, appears to confirm their existence with the exception of the 60-day time-limit for bargaining. Moreover, with regard to the dual criteria contained in legislation for determining the representative status of trade unions for collective bargaining purposes, the Government representative indicated that endeavours to abolish this requirement were being pursued but that it needed the consent of the social partners which had raised objections thereto.

The Committee recalls that all the above measures constitute serious limitations on collective bargaining. It requests the Government to provide information, in its next report, on the measures taken to remove these restrictions with a view to promoting the voluntary negotiation of terms and conditions of employment through collective agreements in accordance with Article 4.

3. Regarding the denial of the collective bargaining rights of public servants, the Committee notes the statement made by the Government representative to the June 1998 Conference Committee to the effect that a draft Bill on public servants' union formulated in accordance with the Turkish Constitution (article 53), as amended in 1995, had been submitted to the Grand National Assembly. In addition to guaranteeing freedom of association for public servants, the Bill envisaged judicial appeal mechanisms and an impartial conciliation board. The provisions of the Bill had been debated extensively in Parliament and nearly half of them had been approved. It was expected that the remaining part would also be debated and enacted. In the meantime, Act No. 4275 of 12 June 1997 had amended the Public Servants' Act No. 657 to recognize the right to organize trade union and higher level organizations for public servants.

With regard to the collective bargaining rights of public sector workers, the Government representative indicated that public sector workers under employment contracts had always enjoyed the same rights as private sector workers. Contract personnel employed in public economic enterprises would be covered by the Bill on public servants' unions, since they were considered to be public officials employed in the continuous and essential services of the State.

The Committee once again expresses the firm hope that the Bill on public servants' unions will grant collective bargaining rights to public servants with the sole possible exception of those engaged in the administration of the State and that it will be enacted in the near future and requests the Government to inform it, in its next report, of any progress made in this regard and to send a copy of the Bill once it is adopted.

4. With regard to the issue of the collective bargaining rights of workers in export processing zones (EPZs), the Committee notes that the information provided to the Conference Committee confirms that if negotiations fail, Act No. 3218 of 1985 imposes compulsory arbitration in EPZs for the settlement of collective labour disputes, although this Act would no longer apply from the year 2000 to the Aegean Free Trade Zone, which employs some 90 per cent of all the workers concerned.

The Committee would nevertheless recall that the imposition of such compulsory arbitration runs contrary to the principle of the voluntary nature of negotiations established in Article 4. It therefore requests the Government to take the necessary measures to ensure that all workers in all EPZs enjoy the right to negotiate freely their terms and conditions of employment.

The Committee requests the Government to give detailed information in its next report on the points raised above. It requests the Government once again to consider availing itself of the assistance of the Office with a view to removing the obstacles which prevent the Convention from being fully applied.